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NORTH RIVER INS. CO. v. DUTCHESS CTY.

January 17, 1995

THE NORTH RIVER INSURANCE COMPANY, Plaintiff, against DUTCHESS COUNTY, et al., Defendants.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiff North River Insurance Company ("North River") has moved for summary judgment declaring that it is not obligated to defend or indemnify the defendant Dutchess County (the "County") under the County's policy with North River with respect to allegations of improper law enforcement conduct asserted in Fodelmesi v. Schepperly, 87 Civ 6762.

 North River's motion is denied.

 II

 North River's responsibility to pay damages awarded against the County in Fodelmesi turns upon whether or not an "occurrence" triggering potential liability on the part of the County for false arrest, prosecution or imprisonment occurred during North River's policy's coverage, beginning in 1986. The first steps taken by the County against Fodelmesi (the plaintiff in the underlying action) were initiated in 1984; Fodelmesi was ultimately released from custody after the North River policy took effect.

 When and whether a single date of "occurrence" can be assigned to a series of events or whether they continue so long as their consequences cause additional effects is a pragmatic one under New York law; all relevant circumstances must be considered See numerous authorities cited, ER Squibb & Sons v. Accident & Cas Co, 853 F. Supp. 98 (SDNY 1994) (involving the pharmaceutical product DES).

 To ignore potentially decisive aspects by artificially focusing exclusively upon one aspect (unless called for by a per se rule of application which makes sense under the circumstances *fn1" ) is to fall into what is sometimes called the fallacy of disaggregation. See Continental Ore Co v. Union Carbide & Carbon Corp, 370 U.S. 690, 707, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962); Tushnet, "Book Review," 82 Colum L Rev 1531, 1536-39 (1982).

 In Squibb, factual analyses of what takes place when DES is ingested were available and largely undisputed. In the present instance, however, no reliable factual material concerning Fodelmesi's actual treatment by the County or justification for such treatment is available, nor is such information likely to be available prior to adjudication of the merits of the underlying action.

 In some instances in cases applying the law of other states, the filing of a complaint triggers all relevant subsequent events with sufficient inevitability to make the filing of the complaint the sole "occurrence" for purposes of dating insurance coverage. See, e.g., Ethicon v. Aetna, 688 F. Supp. 119 (SDNY 1988) (New Jersey law).

 In other instances, post-arrest facts may lead to alleged tortious failure to release a prisoner. It is quite possible, for example, that Fodelmesi was properly arrested and even prosecuted but improperly held after one or both events because of subsequently discovered information. See generally Williams v. County of Sullivan, 157 F.R.D. 6 (SDNY 1994). The likelihoods that any one of these ...


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